City of York Council, R (on the application of) v Secretary of State for Housing, Communities and Local Government & Anor

Where temporary statutory provisions are repealed, an application made before repeal may preserve an inchoate or contingent right under section 16 of the Interpretation Act 1978. The right must be more than a hope or expectation, but it need not be fully quantified or finally determined.

Under sections 106BA and 106BC of the Town and Country Planning Act 1990, economic viability is assessed at the date of the relevant determination or appeal. Completion of building works does not necessarily establish economic viability. The assessment may include realised or prospective receipts, costs and market conditions.

Trinity entered into a section 106 agreement requiring affordable housing or payment of commuted sums. It applied on 29 April 2016 to modify the obligation under sections 106BA and 106BC of the Town and Country Planning Act 1990, one day before those temporary provisions expired.

The Council refused the application after repeal. The Secretary of State nevertheless entertained Trinity’s appeal and reduced the payment obligation. The Council sought judicial review, arguing that repeal extinguished Trinity’s statutory right to pursue the application and appeal, and that a completed development could not be economically non-viable. The central issues were whether section 16 of the Interpretation Act 1978 preserved the right and whether completion precluded the statutory viability assessment.

1. Judicial review refused. The Secretary of State had power to entertain and determine Trinity’s appeal.
2. Section 16(1)(c) of the Interpretation Act 1978 preserves an acquired or accrued right after repeal unless a contrary intention appears. The right may be contingent or inchoate. It must, however, be an entitlement to a benefit rather than a mere hope or expectation.
3. Under section 106BA(3)(a) of the Town and Country Planning Act 1990, the statutory outcome is mandatory if the affordable housing requirement makes the development economically non-viable. Economic evaluation and judgment do not amount to an unfettered discretion.
4. Trinity’s application, made before repeal, was an essential step creating a contingent right to seek modification or discharge. Further investigation was required to establish whether the condition was met and the amount of any reduction. The case therefore fell within the third category identified by Lord Hunter in County Council of Moray and Others, Petitioners, not the categories concerning a mere abstract statutory opportunity or hope.
5. The 2013 Act disclosed no contrary intention excluding section 16. The absence of transitional provisions was neutral because section 16 itself supplied the relevant saving. The power to postpone repeal did not alter that conclusion.
6. Completion of the physical works did not necessarily establish economic viability. The statutory test concerns whether the development activity is economically viable, not merely whether it is physically feasible. Viability may be assessed after completion and may involve actual sales, expenses, future receipts, future costs and market conditions at the decision date.
7. The guidance referring to stalled developments could not determine the meaning of the primary legislation and was not exhaustive. Both grounds of challenge therefore failed.

• High Court (Chancery Division): Mr David Halpern QC held that Trinity owed a commuted sum under the section 106 agreement, but that sections 106BA and 106BC could apply to the existing obligation.
• Court of Appeal: In York City Council v Trinity One (Leeds) Ltd [2018] EWCA Civ 1883, the appeal and cross-appeal were dismissed.
• High Court (Administrative Court): The Council’s judicial review claim was refused.